Davidson v. Thornton

• Decision Date: 09 November 1847
• Citation: 7 Pa. 128
• Parties: DAVIDSON <I>v.</I> THORNTON.
• Court: Pennsylvania Supreme Court

7 Pa. 128

DAVIDSON v. THORNTON.

Supreme Court of Pennsylvania.

November 2, 1847.

November 9, 1847.

Nov. 2.

IN error from the Common Pleas of Fayette.

Veech, for plaintiff in error.—The principal question in this case is, whether, as regards the terre-tenant, the judgment had lost its lien. On this he cited, Ulrich v. Voneida, 1 Penna. Rep. 245; Minier v. Saltmarsh, 5 Watts, 299; Brown v. Simpson, 2 Watts, 242; Clippinger v. Miller, 1 Penna. Rep. 71; Lusk v. Davidson, 3 Penna. Rep. 229; Fursht v. Overdeer, 3 Watts & Serg. 470; Westmoreland Bank v. Rainey, 1 Watts, 32; Armstrong's Appeal, 5 Watts & Serg. 352; Meason's Estate, 4 Watts, 341; Willett v. Archer, 1 Man. & Ry. 317; Geiger v. Hill, 1 Barr, 509.

Howell, contrà.—Where a judgment has been rendered against a defendant, and it is opened, he will not be allowed to avail himself

of any technical difficulty: Ekel v. Snevily, 3 Watts & Serg. 272; Pennock v. Hart, 8 Serg. & Rawle, 369; Chahoon v. Hollenback, 16 Serg. & Rawle, 432.

Nov. 9. GIBSON, C. J.

That no defence can be taken to a scire facias post annum et diem, but subsequent satisfaction of it, or a denial of its existence by the plea of nul tiel record, and that under no circumstances can the original merits be overhauled, was decided in Curdesa v. Humes, 5 Serg. & Rawle, 68; and for the same reason, no exception can be taken to the validity of a judgment, sought to be revived either for the purpose of execution or of lien, if it stand in substance and in form on the record as a judgment of the court. From the time of Lewis v. Smith, 2 Serg. & Rawle, 142, to the present day, it has been constantly held, with two exceptions when the court were divided, that an erroneous judgment is valid between the parties and those claiming under them, till it be set aside on motion, or reversed on writ of error. If the defendant deny the judgment, he fails, if a judgment in form is produced; and he will not be heard, if he attempt to show that it ought not to have been rendered. We cannot therefore inquire whether Beeson, who confessed the judgment in question, was the proper representative of the original defendant, or whether he had a special authority to confess it. Defects from this cause, if they existed, might have been fatal to the judgment on motion, or perhaps in a court of error; but if the parties to it do not choose to take advantage of them, what is that to a terre-tenant who paid for the land at its estimated value, as encumbered? In Hauer's Appeal, 5 Watts & Serg. 473, where the principle was particularly considered, it was held, that a judgment confessed in a district court, on a warrant to confess in a court of common pleas, and which was consequently entered without the semblance of any authority, could not be set aside, directly or collaterally, at the instance of a subsequent judgment creditor; and a terre-tenant, who, like him, came in under the defendant, stands in the same predicament. Even a collusive judgment, though a nullity as to creditors, is conclusive between the parties to it; and a terre-tenant claiming by conveyance from the defendant, stands on no higher ground. This disposes of the first two exceptions.

The judgment sought to be revived, as to its lien, was rendered on the 31st of August, 1839; and the regularity of the previous revivals is not disputed. Within the five years, but without naming a terre-tenant, a scire facias, to further prolong the lien, was issued to June Term, 1844, and returned tarde venit, but to which Beeson, the administrator of the original defendant, entered an appearance, which the plaintiff disregarded, and issued another scire facias after the five years had expired, as well as after the lapse of a term, in which the issue and return of the preceding writ was not recited. The latter was issued to the December Term of the same year; and to these proceedings the following exceptions are taken.

First, it is said that, as the terre-tenant was not named in the writ or the return of it, he had no notice that he was to be effected; and that, having been returned without service, and consequently without naming him, the subsequent process would not connect him with it, or be carried back by an alias to the day of its inception. We must remember, however, that we have to deal with a statute of limitations, and that if the originating process issued a single day within the time, it saves the bar, whether the party to be affected have notice of it or not; and that the plaintiff is not chargeable with the...